On January 1, 2018, the new Immigrant Worker Protection Act or AB 450, became effective. The law is designed to protect an estimated three million plus undocumented Californian employees, of whom over half are active in the workforce, from Federal immigration enforcement through workplace raids.

​Here are six things that California employers, both private and public, need to know about the new law:​

1. Employers may not voluntarily consent to an immigration enforcement agent entering any non-public areas at a place of labor. This does not apply if the agent provides a “judicial warrant.”

2. Employers may not grant voluntary consent to an immigration enforcement agent to access, review, or obtain employee records without a “subpoena or judicial warrant” (with certain exceptions, such as if an immigration enforcement agent issues a Notice of Inspection (NOI) of I-9s/other records needing to be maintained under federal immigration regulations).​3. Employer must give written notice to employees (plus the authorized representative, i.e. collective bargaining representative, if any, of any immigration review of employment records, e.g. I-9s, within 72 hours of receiving the request e.g. the union, if any.The notice must:

a. Be posted in the language the employer normally uses to communicate with employee;b. Include the name of the immigration agency conducting the inspection;c. Include the date the employer received the notice;d. Explain the nature of inspection (to the extent known);e. Include a copy of the Notice.

4. Employers cannot reverify the employment eligibility of a current employee, except as otherwise required by federal law.

5. Employers must provide a copy of the written immigration agency notice within 72 hours of the employer’s receipt of the results of the inspection (the “Notice of Suspect Documents” (“NSD”)) to certain “affected employees” (employees identified by the immigration agency as ones who may lack work authorization), in addition to a written notice of the obligations of the employer and the affected employee arising from the results. This notice must be hand-delivered if possible, otherwise by mail and email, and should contain:

​​a. A description of any deficiencies identified in the notice;b. The time period for correcting deficiencies;c. The time and date of any meeting with the employer to correct deficiencies;d. Notice that the employee has the right to representation during any meeting scheduled with the employer.

6. Employers can face civil fines of up to $5,000 for a first violation and up to $10,000 for subsequent violations, if they fail to provide the required notices.

Hillary Clinton’s acceptance speech was so warm and embracing of immigrants when compared to Donald Trump’s acceptance speech a week earlier. These were some of her key remarks on immigration:

We will not build a wall. Instead, we will build an economy where everyone who wants a good-paying job can get one. And we’ll build a path to citizenship for millions of immigrants who are already contributing to our economy. We will not ban a religion. We will work with all Americans and our allies to fight terrorism.

I believe that when we have millions of hardworking immigrants contributing to our economy, it would be self-defeating and inhumane to kick them out.

Comprehensive immigration reform will grow our economy and keep families together – and it’s the right thing to do.

Compare these words to Trump’s speech when he only spoke about how immigrants would bring doom and gloom, and thundered that “nearly 180,000 people with criminal records ordered deported from our country are tonight roaming free to threaten peaceful citizens.”

All this is so refreshing and noble when Clinton speaks about building a path to citizenship for millions of immigrants, enacting comprehensive immigration reform and not profiling a group of immigrants solely because of their religion. However, not a word was said about skilled immigrants who are already in the pipeline for a green card, but for the fact that their priority dates have not yet become current. Most of these skilled immigrants were born in India and China who are caught in endless backlogs because of a limited supply of green cards each year set by Congress in 1990, and further stymied by annual caps for each country. We hope that Clinton also would include these immigrants in her forthcoming speeches referencing immigration, who have always been legal and are employed in good paying jobs, as part of comprehensive immigration reform.

David Bier at the Cato Institute has emerged as a fresh and new scholarly voice on immigration. It has always been known that an individual who got sponsored by an employer today in the India employment-based third preference (EB-3) would need to wait for about 60 years before he or she got the green card. In Bier’s new report, No One Knows How Long Legal Immigrants Will Have To Wait, he calculates that there are “somewhere between 230,000 and 2 million workers in the India EB-2 and EB-3 backlogs, so they’ll be waiting somewhere between half a century and three and a half centuries. It is entirely possible that many of these workers will be dead before they receive their green cards.” Ironically, if these workers, by some stroke of luck were able to file I-485 applications in the past, such as the class of 2007 adjustment applicants, their children whose age was artificially frozen below 21 under the Child Status Protection Act will be mature adults before they can immigrate with their parents as “derivative children”. On the other hand, if a child’s age could not be frozen through the filing of an adjustment of status application in past years when the priority date may have become current, they will not be able to remain “derivative children” under the CSPA in the unlikely event that their parents may qualify for green cards in their life time and if the children are still alive.

It is readily obvious that Congress needs to infuse a greater supply of green cards each year in the EB categories, and even lift the country limits, as countries like India and China get more adversely impacted than Lithuania or Finland. While it is desirable that Congress fix this problem immediately, we know that Congress is mostly paralyzed at present. However, one should at least be giving these unfortunate skilled workers top priority in any comprehensive immigration deal if Clinton becomes president and can achieve her stated goal to implement reform within the first 100 days of her presidency. Trump, on the other hand, with his America first policy may be more inclined to curb legal immigration rather than fix it, leave alone expanding it.

While different groups of immigrants justly advocate for expanded immigration benefits, it is important that they all remain united. It may be tempting for skilled legal workers to only seek immigration reform for their group as they have been legal while undocumented immigrants broke the law. However, it is not that undocumented people choose to remain undocumented. They too want to become legal but the current immigration system does not provide adequate pathways for different categories of immigrants to become legal and get onto a pathway to permanent residence. And for those who are here legally and on the pathway to permanent residence, they have to wait impossibly for decades, and now Bier shockingly speculates that it may be centuries. Legal skilled workers, many of whom are on H-1B visas, should not be jettisoned because it has become fashionable to think that they away jobs from US workers. They compliment the US workforce, and most have gone through the labor certification process that required their employers to first test the US labor market before proceeding with their green card applications. Once they get green cards, there will be a surge of entrepreneurial talent in the nation’s economic blood stream. Finally, immigrants already in the US should not pull up the drawbridge behind them and block new H-1B workers. It is important for fresh and talented immigrants to come to the US to achieve their dreams. All we need is an immigration system that has many more pathways to America and is consistent with the needs of the nation in the 21st century.

The present immigration system is broken and can be likened to a terminally ill patient who is suffering from multiple organ failure. The goal for treating such a patient is not just to repair one organ, such as the heart, and leave the other organs in a state of disrepair. This approach will certainly not nurse the patient back to health. All the vital organs in the patient must be revived at the same time. The same holds true for our immigration system, which is like a terminally ill patient. All its components, like body organs, must be repaired. This includes but is not limited to more visas for skilled immigrants and entrepreneurs, faster pathways for loved ones to unite with their family in the US, more opportunities for investors and essential workers, and also a path for the 11 million undocumented to legalize their status. We must also not forget to reform the system for those seeking refuge in America from persecution and other kinds of crimes such as trafficking and sexual violence, and provide more waivers for those who would otherwise be deportable if they have ties with the US or can demonstrate rehabilitation. While Clinton’s message for immigrants is positive and upbeat, she must remember to include all affected immigrant groups, especially legal skilled workers who have been hopelessly waiting for their green cards.

The last few weeks have witnessed severe shocks to the health care system known as Obamacare. The President has issued mea culpas for the not-ready-for-prime-time web site, Health.gov, and for his campaign promise to Americans that if they liked their health insurance plan, they could "keep it. Period." Americans who've lost their preferred health plan have also experienced shocks, of the sticker variety, when they learn the price of replacement coverage. Viewers of Washingtonian pratfalls who look at Beltway antics through the prism of immigration are neither surprised nor amused. There is no surprise to immigration stakeholders that a government web site intended to transform the way benefits requests are managed would fail, for we can spell "Transformation" and "ELIS" -- two immigration software programs with scads of dollars spent and little tangible product to justify the pathetic bang for the buck. We are also little amused about promises broken, like the one where a newly elected President would address comprehensive immigration reform during his first year in office. When it comes to immigration, the President's effort might better be dubbed, IfOnlyObamaCared. To be sure, he's tried the bully pulpit with no tangible success in the recalcitrant House. But squawking is not PIPsqueaking -- a pragmatic and tangible way for the President to grant the 11 million undocumented among us respite from deportation through expanded use of Parole-in-Place or PIP, the discretionary power of the President under Immigration and Nationality Act (INA) § 212(d)(5)(A) to transform an unauthorized noncitizen in the U.S. into an individual with legal status. PIPsqueaking for the undocumented is a low-decibel measure that would position the undocumented to qualify for green cards through adjustment of status in the future under any of the otherwise available family- or employment-based immigrant visa categories. All that's required would be to grant PIP concurrently with another § 212(d)(5)(A) benefit known as "advance parole" and with the issuance of an employment authorization document or EAD. This would allow the undocumented to work and pay taxes and to travel abroad for legitimate business or personal reasons, and then after reentering the U.S. to be essentially cleansed of such prior immigration violations as entry without inspection or failure to depart when required. A PIP/advance-parole/EAD three-step wouldn't fix everyone's status violations (it wouldn't absolve those who have accepted unauthorized employment unless they are the spouse of a citizen or otherwise fall within a forgiveness provision). But it would go a long way to help the undocumented live in this country, under humane conditions, by giving them a chance to earn a living, buy a house or car, purchase insurance and care for their kids. To its credit, the Obama Administration has approved PIP for citizens of the Commonwealth of the Northern Mariana Islands whose work permits would otherwise have expired. More broadly, just last week the President's immigration-benefits agency, U.S. Citizenship and Immigration Services (USCIS), to its credit, issued a policy memorandum authorizing PIP benefits for the undocumented relatives (parents, spouses and children) of "active members of the U.S. Armed Services, [as well as] individuals serving in the Selected Reserve of the Ready Reserve and individuals who have previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve." USCIS approved PIP eligibility while mindful that active and former U.S. military personnel "face stress and anxiety because of the immigration status of their family members in the United States." Thus, the USCIS memo decreed:

Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual.

The President's choices are clear. He. . . . can use his substantial executive authority over immigration policy and make interim changes that alter the facts on the ground. He can establish by rulemaking a registration system that allows the undocumented to come forward, be screened for criminal history and security threats, and grant them temporary work permission until Congress gets to the heavy lifting on CIR.

Had he exercised more mojo than compromise on health care, he would have instead pushed for a simpler "Medicare for all" program that would not have required entanglement and enmeshment with insurance companies that cancel policies. Nor would he have needed a highfalutin web site for Americans seeking insurance to career through the myriad choices of coverage under the new health-care exchanges. Had he pushed on immigration reform earlier in his first term, he'd not be facing the dirge of mourners for the failure of comprehensive immigration reform today. America loves to give second chances. This is Barack Obama's. PIPsqueak your way to immigration salvation, Mr. President.

The Republican National Committee passed a resolution on Friday calling on Congress to pass immigration reform by the end of the year. Unlike the Senate Bill, s. 744, the Border, Security, Economic Opportunity and Immigration Modernization Act, which grants a path way to citizenship, the RNC resolution contemplates legalizing immigrants who came to the US above the age of 18, but only by granting them 2 year renewable work permits. For those who came to the US as minors, they would get a renewable 5 year permit. There is no pathway to citizenship in the RNC’s resolution.

This tepid resolution is completely at odds with BSEOIMA, which will dramatically reform the immigration system. Although the bill does not have everything that everyone wants, S. 744 offers a pathway to legalization for the 10 million undocumented, a new W visa to allow for future flows of lower skilled immigrants and attempts to clear up the backlogs in the employment and family preferences. It also reforms the existing system in many ways by removing the 1 year bars to seeking asylum, creating a startup visa for entrepreneurs, clarifying a contentious provision under the Child Status Protection Act, providing greater discretion to both Immigration and Judges to terminate removal proceedings, among many other beneficial provisions.

Therefore, it remains uncertain whether any measure that the House passes can get reconciled with BSEOIMA, which truly reforms the immigration system. The intransigence in the GOP controlled House, while frustrating the hopes and aspirations of all those who believe that a reformed immigration system will benefit America, also further foreshadows doom for the party in future elections. What caught our attention was a statement by Senator Rubio on the anniversary of the Deferred Action of Childhood Arrivals (DACA) program, one of the main Republican architects of BSEOIMA, when he warned his party members in Congress that if they did not pass a reform bill then President Obama could extend the administrative relief for young people to everyone through administrative action.

The authors have since 2010 been advocating the ability of the President to ameliorate the plight of non-citizens trapped in a broken system through administrative measures. We have also proposed that the President can resolve the crisis in the backlogs in the employment and family based preferences by not counting derivative family members. It was thus heartening to know that Rubio also acknowledged the President’s ability to pass an executive order, although he sees this more as a threat for his party. First, if Obama provides ameliorative relief to millions of immigrants, it will benefit the Democrats in future elections, just as DACA benefited the President in his reelection in November 2012. Second, if the President were to expand DACA to a broader group of undocumented people, and allow them to apply for work authorization and travel permission, this might be better than the GOP immigration reform proposal, if it got passed into law as part of a compromise with the Senate. Such an executive order will not be accompanied by a needless and expensive militarization of the border (which is also a feature of S. 744), along with mandatory E-Verify that will bog down business large and small. It will not include draconian provisions that the House might likely pass in exchange for legalization, such as authorizing enforcement of immigration law by state police or criminalizing undocumented status.

This is not to say that a Presidential executive order is a substitute for comprehensive immigration legislation. The President will not be able to grant permanent residence to the undocumented, only work authorization and travel permission, and the family and employment based preferences will continue to have a limited supply of visas. Still, in the absence of Congress passing a comprehensive bill to reform the broken system, something is better than nothing. As we have already commented, if we do not count family members, that in itself would dramatically reduce waiting times in the family and employment preferences. Many of the people who will be legalized under an executive order may be able to ultimate get permanent residence through existing pathways. It is true that the President will not be able to increase badly needed H-1B visas through executive fiat, but it may be possible to give employers greater access to the unlimited O-1 visa by broadening the definition of “extraordinary ability” to allow many more accomplished foreign nationals to work in the US. While an executive order will not include a new start up visa, if the current Entrepreneurs Pathways initiative is implemented faithfully, many entrepreneurs can start companies in the US under existing work visa categories.

While the authors support the passage of S.744, it is tempting to add that executive action can avoid the economic illiteracy that plagues the H-1B wage provisions embraced by the Senate as the price of passage and avoid the misguided tendency of House Republicans to extend this inflationary regime to other categories such as the TN. Unlike S. 744, it will not discourage employers from hiring foreign nationals by mandating artificially inflated wages for foreign nationals, a feature of S. 744 that sharply conflicts with expanded H-1B quotas and more generous provisions for employment-based migration. It will not cripple start-up companies who badly desire key foreign personnel but will under the new law be unable to afford them. It will not price American companies out of the green card sponsorship market, divert precious funds that would otherwise be invested in cutting-edge research or dry up surplus capital that would be better spent on equipment modernization. Executive action will be devoid of the hugely inflationary wage rules adopted by the Senate as part of the deal making that resulted in the passage of S. 744, thereby encouraging more employers to refrain from moving jobs offshore or to low wage labor markets out of the United States. As a result, when compared to S. 744, action now by President Obama might make it more, not less, likely that companies will sponsor foreign workers for green cards.

The President always has this ace up his sleeve, which is the ability to grant relief through an executive order, to force Congress to pass immigration reform. If Congress in fact fails to pass immigration reform, the President can actually bring about immigration reform, which may look better than any of the reform proposals being floated by the GOP in the House. Of course, a future President can get rid of such administrative measures, but this usually does not happen as it would be politically too dangerous to further alienate the Latino vote. It is more likely that a future Congress will bless such administrative measures like the way BSEOIMA did with DACA recipients. So, in light of all the uncertainty regarding the passage of a comprehensive immigration bill, a Presidential executive order, or the potential for one (as Rubio presciently realized) may not be such a bad thing.

The invocation of executive action would allow the undocumented to remain in the United States with the opportunity for employment authorization and seek to utilize existing avenues for transition to lawful permanent resident status. It puts them in the same position as everyone else who seeks the green card. From this perspective, executive action would be consistent with the compromise proposal advocated by House Judiciary Committee Chair Robert Goodlatte ( R-Va.). Many of the undocumented already have, or will, over time, acquire adult US citizen children; others may marry American citizens and still others could attract employer sponsorship. Keep them here, allow them to come in from the shadows, and let the undocumented regularize their status through the disciplined utilization of existing remedies. Not only is this a solution that does not require the House GOP to abandon dysfunctionality as their prime governing philosophy, something they are manifestly loath to do, but, even if Congressional ratification subsequently is felt necessary or desirable, this is precisely the path to legalization that Represenative Goodlatte has already outlined.

Charles Kuck, ABIL PresidentMusings on ImmigrationOne of the striking things about reading hundreds of newspaper articles about "immigration reform" with thousands of quotes from politicians is the amazing misuse of words and phrases that form an essential part of the debate. To aid you in your understanding of the immigration reform debate, here are definitions of the key words and phrases, as used by the different side,s on this very important issue.

Word/Phrase

Immigration Reform

The Senate Immigration Bill

DACA/Deferred Action for Childhood Arrivals

DREAMers

Amnesty

Border Security

“Back of the Line”

E-Verify

Senate Democrat and GOP Meaning

Our current legal immigration system is broken and is in need of a complete review and rewrite to ensure the future competitive economic advantage held by the United States as a nation of immigrants.

The Border Security, Economic Opportunity and Immigration Modernization Act of 2013 BSEOIMA’s 1,198 pages are a virtual rewrite of thousands of additional pages of one of the most complex immigration systems on earth. BSEOIMA attempts to enhance border security, hold employers accountable for undocumented hires, fix a terrible legal immigration system, create a future path for immigration, and deal with the 11 million undocumented people and their families humanely and justly.

Program put in place by President Obama in June 2012 to alleviate the political pressure he was receiving from undocumented students, brought here as children through no fault of their own, who seek a future opportunity in the only country they have ever known.

Those brought to the United States under the age of 16, educated here, and who have become American in every sense except for a piece of papers. These kids will receive an expedited process to permanent residence under a stringent and detailed list of criteria.

Does not exist. Amnesty is complete forgiveness without recompense. There is no Amensty in BSEOIMA. Fines, delays, civic and language requirements, high filing fees and and a 10 year wait for full legal status ensure that there is NO forgiveness without recompense.

What line? Today some relatives have an 24 year wait for a green card, and employers can wait up to 14 years to immigrate some employees. BSEOIMA reduces backlogs, increases visa opportunities, creates a new start up visa, increases investment, rewards Masters Degree and PhDs with US Degrees in STEM fields, generally fixes the “line” and creates enormous economic benefit to the US.

A necessary part of immigration reform, requiring all US employers to verify the identity and work authorization of all new employees with an online federal government database run by the USCIS and Social Security Administration. While error prone and time consuming, it is currently the only effective way to verify employment eligibility.

House GOP Meaning

An attempt by Democrats to create millions of new Democratic voters, and to destroy the foundation of America.

A Democratic attempt to pass an amnesty to reward lawbreakers and create open borders to allow the destruction of America.

President Obama’s attempt to curry favor with Latinos by offering a work permit to kids who should not be in the United States. This program must be defunded. (NOTE: There are no public funds used for this program).

The word in Washington is that S. 744, the Gang of Eight's immigration bill, must move to the right if it is to pass the Senate by a 70-vote, bipartisan margin, and thereby pressure the House to pass a (no doubt rightward-leaning) version of comprehensive immigration reform (CRI). Some Members of Congress, however, Senator John Cornyn (R. TX) among them, don't trust the Executive Branch to secure the border. The Texan has therefore proposed a 134-page amendment that, besides imposing numerous forms of Congressional micro-management, would allow most undocumented people to transition from Registered Provisional Immigrant (RPI) status to lawful permanent residency only if and when the border is proven to be essentially impregnable. Senate Majority Leader, Harry Reid, calls the Cornyn amendment a "poison pill." Sen. Charles Schumer (D. NY) and Sen. John McCain (R. AZ) say they'll try to work with Sen. Cornyn for an acceptable compromise that does not hold RPIs hostage for an intolerable and uncertain time beyond the 10 years already provided in S. 744. All of this emphasis on border security is supposedly intended to fix the problem of illegal immigration once and for all. There must be no repeat of the 1987 fiasco that is the Immigration Reform and Control Act (IRCA), an imperfect law, it is said, which allowed the undocumented population to grow by millions. IRCA was flawed, to be sure, in not imposing a biometric system of identity and employment verification, not creating an entry-exit verification system, making the border more secure, and not creating a legal system for the future flow of foreign workers to serve the needs of the American economy. Experience, however, teaches a few verities that both the Gang of Eight (G8) and Sen. Cornyn seem to ignore:

No law will ever be so successful as to prevent determined families from reuniting even if it means crossing a heavily fortified national border illegally.

Eliminating the "pull" factor of American jobs will not remove pressures on the border caused by the "push" of economic misery, political instability, religious intolerance, dictatorial regimes, natural catastrophes, wars and revolutions.

E-Verify will not succeed in closing the systemic holes allowing unauthorized persons to gain employment in the U.S. until Americans are willing to accept the loss of privacy and liberty inherent in a massive national database and system requiring all native-born and naturalized citizens to pay for, obtain and proffer a fraud-proof national work-permission card in order to be hired.

An unrealistically low quota, such as the maximum of 200,000 visas allotted per year under the "W" category proposed in S. 744 for unskilled and low-skilled foreign workers, disregards the needs of the American economy and creates new pressures to breach the border illegally.

Border enforcement requires a far more substantial investment in the courts than is proposed by Sen. Cornyn or the G8 (as these letters from the Judicial Conference of the United States to the Chairmen of the House and Senate Judiciary Committee underscore), and a dramatic revamping of the atrocious "system" by which "immigration justice" is meted out.

The Fortress America concept of an impermeable border would devastate America's position in the global economy and hurt us far more than protect us. Border communities are thriving precisely because the borders are permeable. Whether the border is surrounded by alligators (as President Obama jokingly suggested might be the only means to satisfy border hawks), or electrified (as Herman Cain proposed), we must never bar the door so strongly as to toss out the welcome mat. The border must be managed so that the worthy are allowed speedy ingress and the harmful are barred. A new concept must be developed, perhaps one taken from the fishing industry where the government must promote strive to economic benefit while minimizing environmental harm. Consider, for example, tuna fishing. Americans love their tuna sandwiches but they would choke if they thought that Flipper must be killed just to have a tasty lunch. Enter Dolphin-Safe Tuna Fishing and Labeling. Thus, Senators and Representatives, further strengthen the border if you must, but not so much as to destroy the countless benefits of comprehensive immigration reform. Paraphrasing Sen. John McCain's "complete the danged fence," we Americans must insist that our legislators hunker down and just "pass the danged" CIR.

Immigration law and tax law, although at first glance strikingly different, share much in common. Each rivals the other in complexity. Each permeates every nook and cranny of human behavior -- from commerce and criminality to love and divorce, from mental illness to extraordinary brilliance, from birth to death and everything in between. Though each is a distinct legal discipline, they are but variant species within the general fields of administrative law, litigation and appellate law, public and private international law, family law, estates and trusts, criminal law, and of course constitutional law. The sting of taxes -- forever coupled with death as life’s two unavoidable realities -- likewise is yoked to our all-pervasive immigration laws in ways both subtle and obvious. Yet Americans are outraged when tax laws and revenue agents bite them, but seem scantly or not at all troubled when our immigration laws and their bureaucratic enforcers devour people and property rights. No doubt this disparity of concern proves the maxim that it all depends on whether your own or your neighbor’s ox is gored. Thus, amnesty generates nary a peep if granted to tax cheats, but stands as an outrageous transgression against the rule of law if leniency and pragmatism are offered to aspiring Americans who lack legal status. So too with the terabytes of digital ink spilled over the recent revelation that IRS agents in Cincinnati probed more searchingly applicants for non-profit designation of the Tea Party persuasion than supplicants on the left. A scandal to be sure, but why is the public not similarly incensed when immigration agents cross the line and behave not as neutral technocrats but as political actors? Consider the recent action of the federal union representing the officers of U.S. Citizenship and Immigration Services (USCIS) who announced in a press release that it had signed on to a letter issued by another government union, the National Immigration and Customs Enforcement Council, which represents officers of a different immigration component of the Department of Homeland Security (DHS), U.S. Customs & Immigration Enforcement (ICE). As TheNew York Times observed in a recent editorial, “Leaders of [the ICE and USCIS] unions have joined antireform hard-liners in trying to kill the [comprehensive immigration reform (CIR) bill that just passed the Senate Judiciary Committee], showing an unbending hostility to its goals. The unions, sounding like health care workers forced to engage in practices that violate their collective conscience, and a bit like erstwhile presidential candidate, Rudy Giuliani, offer a scurrilous letter that resurrects all too familiar bogeymen as punching bags: “illegal aliens,” “gangs,” and “9/11.” Sadly, however, as The Times observes, “[what] any of these false charges has to do with the work of immigration agents -- which is to enforce the immigration laws as written -- is beyond us.” Indeed, there is a "certain piquancy" when "conservative" Republicans opposing CIR scurry to become bedfellows with federal labor unions, clearly miffed at not being consulted by the Gang of Eight. Where is the popular outrage over the scandalous behavior of immigration officers that is just as abhorrent as the misadventures of errant IRS officials? The actions of the IRS involved comparatively few agents in an understaffed local office, whereas the union leaders’ letter is offered as the shared belief of 7,000 ICE agents and 12,000 USCIS employees.To immigration lawyers, the letter and press release are shocking not so much for their contents as the brazenness displayed in their publication. With far more visibility than Luther’s famous nailing of his views on the Wittenberg church door, these unions are throwing down the passive-aggressive gauntlet to Congress, the Obama administration, and the leadership of DHS. They declare, in essence, “pass what you will, but watch how we interpret, apply and enforce the law!” The unions raise hobgoblins over the discretion that the Senate bill, S. 744, would give to "political appointees" who allegedly prevent these oath-bound officers from administering the strictest letter of the law. Yet they fail to recognize that the absence of discretion in enforcement created the pickle we are in. A nation that will not tolerate and cannot pay for the mass deportation of 11 million people must grant our only nationally elected leader, the President, and his chosen team, the power to be strict with those who threaten our safety and lenient with those who do us no material harm. The immigration unions' power play has unmasked their insubordination for all to see. They do not want merely to apply the law as written but to pick and choose the laws they will enforce and be the rulers themselves. No government should tolerate this flouting of legislative will and executive authority. Congress should recognize its mistake when, in passing the Homeland Security Act, it moved USCIS, the immigration benefits agency, from the Justice Department, where that function had historically resided, and co-mingled it irreconcilably with immigration enforcement at DHS. CIR should put USCIS back into DOJ. The legislation should also abolish USCIS's Fraud Detection and National Security Directorate, and reaffirm that the immigration enforcers' power to nab fraudsters, terrorists and other lawbreakers is a shared but exclusive function of the interior and border immigration police, respectively, ICE and U.S. Customs and Border Enforcement. Congress must also recognize its failure of immigration oversight that allowed the types of immigration scandals reflected by the unions' power grab to occur. The President and the DHS leadership team must also grow spines. Discipline and pink slips are the proper responses to insubordination. The wrong way to go would be to give the unions more power to fashion law in their image, as President Obama reportedly did in 2009 when signing an "an executive order to allow the [IRS] union to have pre-decisional involvement in all IRS workplace matters." In the final analysis, taxation and immigration -- and their associated scandals -- illustrate the same problem. It arises when career bureaucrats are allowed to trample the rule of law in fits of partisan excess, and elected leaders, failing in timely oversight, are outraged only when the spotlight of media attention leads to enough public discontent that tenure in office and the prospects for reelection are threatened.

While most of the nation fixated this week on black and brown American heroes in Cleveland, the attention of immigration advocates diverged. They vacillated between delight with the imploding anti-immigration conservative movement and nail-biting over votes on a flood of amendments to the massive, bipartisan Gang of Eight bill in the Senate Judiciary Committee.

Whatever the right answer (I could argue for all three positions), that debate will be left to historians if an enlightened form of comprehensive immigration reform (CIR) is enacted this year. That won't happen, however, if the poison-pill pharmacists on the right are allowed to administer a deadly dose. Take for example, Sen. Ted Cruz (R. TX) who proposes a fatal amendment to bar any path to citizenship for the 11 million undocumented immigrants in the United States. Or consider the Downton Abbey amendment offered by Sen. Mike Lee (R. UT) which would allow Americans to hire the undocumented but only if they served (apparently only the 1%) as "cooks, waiters, butlers, housekeepers, governessess, maids, valets, baby sitters, janitors, laundresses, furnacemen, care-takers, handymen, gardeners, footmen, grooms, and chauffeurs of automobiles for family use." It's not only about preventing bad amendments but also preserving and improving on good ones. Take for example an amendment that markedly improved on the Gang of 8 version which would merely have expanded the jurisdiction of the U.S. Citizenship and Immigration Services (USCIS) Ombudsman to also cover U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). Proposed by Sen. Mazie Hirono (D. HI) and passed by voice vote, Section 1114 of the CIR bill creates a new "Ombudsman for Immigration Related Concerns" with the power to:

receive and resolve complaints from individuals and employers and assist in resolving problems with the immigration components of the Department [of Homeland Security].

conduct inspections of the facilities or contract facilities of the immigration components of the Department.

identify areas in which individuals and employers have problems in dealing with the immigration components of the Department.

determine whether an individual or employer is suffering or is about to suffer an immediate threat of adverse action as a result of the manner in which the immigration laws are being administered, and intervene as necessary.

propose changes in the administrative practices of the immigration components of the Department to mitigate [identified] problems . . .

review, examine, and make recommendations regarding the immigration and enforcement policies, strategies, and programs of [CBP], [ICE], and [USCIS].

request the Inspector General of the Department of Homeland Security to conduct inspections, investigations, and audits.

Consider also various amendments not yet voted on which are proposed by Sen. Leahy (D. VT). One would modernize and make permanent the EB-5 regional center program for immigrant investors. Others would enact family-based immigration benefits for same-sex couples by way of the "Uniting American Families Act of 2013" and another measure would recognize for immigration purposes all marriages valid under the laws of any state or country, including same-sex nuptials. Ponder as well the amendments long espoused by Sen. Chuck Grassley (R. IA) who would add the heavy hands of hamstringing regulations and enforcement to the H-1B and L-1 bill, in ways even worse than the bad ideas already in the G8 proposal. These amendments (Grassley 57 to 67), along with the base bill, would stifle innovation not only in the tech industries but they would also essentially declare illegal the modern business practice of global sourcing of services on which so many American companies and customers rely. The point of this post is not that revelry over the fall of xenophobes and eugenicists is wrong; rather, it is that celebrations of that sort are unaffordable luxuries. That wine is just too rich at this late hour. Advocates for enlightened CIR must instead keep eyes peeled on the Senate Judiciary Committee and its fast-and-furious consideration of amendments which will profoundly reshape in ways unforeseeable the rules for employment- and family-based immigration. This week's action will focus on Title IV which would transform (in good and bad ways) many of the most heavily-used nonimmigrant visa categories and create new classifications whose contours will be decided in the coming weeks, perhaps as soon as Memorial Day. So save your gloating for another day. Now, keep the Congressional feet to the fire. Let the word go out in Twitter feed and Facebook update, in radio/TV talk shows on cable, broadcast and satellite networks, in blog posts and letters to the editor. Let calls overflow the capacity of the Capitol Switchboard. We need a modernized immigration system that functions well; not one hampered by bureaucratic red tape and heavy-handed, guilty-until-proven-innocent enforcement. It must spur 21st Century innovation and job creation in the private sector. And it must be true to our bedrock values of family unity and refuge for the persecuted. From your mouths to the Senators' ears.

Much has been written since April 17 when the bipartisan Gang of Eight senators introduced S. 744, a brobdingnagian immigration reform bill that overlays 844 pages of turgid text on top of the already gargantuan and complex Immigration and Nationality Act. The Migration Policy Institute, the National Immigration Law Center, and the American Immigration Lawyers Association (AILA) have each offered a helpful analysis of the bill. This legislative leviathan grew to 867 pages on April 30 with the substitution of a “managers’ amendment” (available here as revised and here as redlined, as well as here with AILA’s redlined section-by-section analysis released on May 1). Although most of the media focus has homed in on border security and the seemingly IED-laden roadway to citizenship for undocumented immigrants, U.S. companies -- especially the General Counsel (GCs) who advise them -- are slated to be on the receiving end of shock and awe if the “Border Security, Economic Opportunity, and Immigration Modernization Act,” or BESSIE MAE, as wags like to call it, ever becomes law. As I explained in a recent article (penned before the managers’ amendment), “Senate Immigration Reform Bill Offers Surprises Galore for Employers,” BESSIE MAE presents American companies with a slew of opportunities and burdens. Consider just a few:

The H-1B visa quota will rise from 65,00 to 110,000, with a phased escalation clause pushing the quota as high as 180,000 per fiscal year, based on employer demand and the unemployment rate for “management, professional and related occupations.” Yet this Faustian gift will cost employers dearly in pre-hiring recruitment, higher filing fees, increased record-keeping, expanded enforcement authority for the Labor Department, and greater potential fines and penalties.

Similarly, managers and executives who may or may not become L-1A intracompany transferees would be allowed to enter the U.S. as business visitors for up to 90 days “to oversee and observe the United States operations of their related companies, . . . [and] [e]stablish strategic objectives when needed,” while “employees of multinational corporations [may] enter . . . to observe the operations of a related United States company and participate in select leadership and development training activities . . .” Yet in return, employers lose the free hand heretofore available to devise creative incentives and bonuses for their inbound expatriate employees who now, like their H-1B brothers and sisters, must be paid the " prevailing wage" under the watchful eyes of the Fraud Detection and National Security Directorate (FDNS) of U.S. Citizenship and Immigration Services.

In like manner, employers would be given immunity (none dare call it "amnesty") if they maintain on their payrolls workers who are undocumented immigrants but who express the intention to apply for the new Registered Provisional Immigrant status. Yet, enrollment in a veritable E-Verify on steroids will become mandatory for all employers, and the Form I-9 (Employment Eligibility Verification) will continue to be required. Worse yet, any new hires who fail to receive confirmation of employment eligibility from E-Verify on the first try must continue to be paid, trained and employed while they pursue a host of new administrative hearing and appeal rights of indeterminate length.

Proactive GCs of corporate America should therefore make sure that their companies are ready for the tsunami of change that will sweep over the enterprise if BESSIE MAE or any equally unreasonable facsimile thereof makes it into the statute books. The old way of managing immigration, as a backwater area of law relegated to Procurement, Recruiting, Human Resources, and Payroll Administration, or -- worse yet -- to foreign nationals seeking work visas who are encouraged or allowed to find a low-cost immigration lawyer to "help" the company, will no longer do. Years back, it was sufficient to consider adopting tips from such articles as, "A Three-Point Immigration Manifesto For Chief Legal Officers And Outside Counsel," and “Global Mobility Management—A Primer for Chief Legal Officers and HR Executives.” Times since then, however, have changed. To best manage risk, exploit opportunities and control costs across the enterprise while squeezing the most value out of limited resources, GCs must adopt a comprehensive plan of immigration portfolio management, whose key components should address a variety of essential concerns:

Immigration-customized technology and tools. Immigration Tech tools should include integrated dashboards (developed, prepared and maintained by external immigration counsel and a client-dedicated project management expert at the law firm) with "Single Sign-On" capability and screen views customized to the specific but differing needs of in-house counsel, and all other essential stakeholders within the enterprise. Access would therefore be instantly available to:

an online collaboration tool using secure FTP extranet technology to exchange and logically organize immigration work product, thereby dispensing with the need to search for on-the-fly emails.

a robust immigration case management system listing case status and key expiration dates for all employees on work visas or pursuing green cards,

an "E-Room" library that houses documents which FDNS or other immigration enforcement personnel might demand to see on short notice such as H-1B public access folders, individual and multi-slot Labor Condition Applications, petitions and applications submitted to immigration agencies, recruiting and advertising materials required for immigrant and nonimmigrant work visa eligibility, vendor agreements with IT and business consulting firms that employ their own foreign workers onsite at company locations, and posting and nondisplacement attestations, and

a consulting hotline and an online consulting log which serves as a knowledge-management repository for all responses to varying fact patterns, FAQs, memorandums and other oral or written guidance provided to the corporate client over time, with links to the contact information of the lawyer providing the guidance so that there is easy followup with a subject matter expert who can provide any new updates or more nuanced responses.

Key Immigration Performance Indicators. Metrics would be based on real-time data derived from Human Resource Information Systems that are linked and updated bi-directionally for use by internal recruiters and hiring personnel, and the business's outside immigration lawyers.

True Partnering with Outside Counsel. "Partnering" is a meaningless buzzword in too many law firms' pitch kits -- one tossed at chief procurement officers who claim to want quality and strategic counsel but are only willing to pay for commoditized immigration legal services offered by the lowest bidder. Real partnering looks more like this:

It begins with a convergence process in which only one or at most two firms are selected after a carefully conceived request-for-proposal process is concluded, a process in which immigration lawyers come into corporate headquarters not to brag about their talents, but instead model what it would be like to work side-by-side with them to achieve the company's business mission while minimizing risks and controlling wasteful practices.

The chosen law firm(s) would invest time, money and resources into a long-term relationship, offering all of the integrated legal services required in the immigration arena -- not just Johnny and Jane One-Note visa and green card services, but scalable immigration benefits-procurement assistance, interdisciplinary immigration-compliance defense, federal court litigation and appellate law services, tax advice, U.S. and international employment law representation and export control law guidance -- all under one roof.

Immigration counsel would meet regularly and ad hoc as needed to evaluate the final immigration reform legislation, advocate for employer-friendly rulemaking, and map out action plans and task owners so that the enterprise is poised to pounce upon immigration opportunities with training programs and internal open-house forums for foreign nationals and managers, prepare Congressional outreach and media strategies, and eliminate or minimize old and new compliance risks. Also included in these meetings would be an annual "Client 101" orientation program taught by in-house counsel for the external team of immigration lawyers, paralegals, project managers and administrative staff to learn all about the company and its culture and a periodic Client/Law-Firm Summit.

Immigration counsel would also provide benchmarking opportunities to help develop best practices based on the experience and wisdom of comparable businesses in similar industries and share knowledge and strategic thinking from other industry contacts with in-house counsel.

No longer on hearing the word "immigration" should GCs be made to suffer that all-too-familiar form of queasiness which arises when an "alien" substantive-law problem lands on his or her desk. Inoculation with a healthy dose of immigration portfolio management will provide GCs with immunity from the worst that the likes of BESSIE MAE can try to inflict on them. So there's no reason to toss one's most recent meal. Just take a prescription for immigration portfolio management and contact the most qualified immigration counsel to be found.

We need to be ever vigilant. We need to go far deeper into our border crossings. . . . We need to take a look at the visa-waiver program and wonder what we’re doing. If we can’t background-check people that are coming from Saudi Arabia, how do we think we are going to background check the 11 to 20 million people that are here from who knows where?

Another occurred on Reddit, where an amateur sleuth named Pizzaman along with multiple Reddit contributors noted the similarity to the photos of Suspect #2 (Dzhokhar Tsarnaev) and a missing Brown University student of Indian descent, Sunil Tripathi, whose whereabouts, sadly, remain unknown. (Reddit's moderator has since apologized for this misinformation disaster to the Tripathi family (who are as American as you and I.) Still another erupted, quite expectedly, from Ann Coulter's Twitter feed after the death of Suspect #1 (Tamerlan Tsarnaev) who mocked G8 member, Sen. Marco Rubio: "It's too bad Suspect # 1 won't be able to be legalized by Marco Rubio, now." Similarly, long-time jingoist, Pat Buchanan suggested three days after the bombing that the focus should only be on border security. Apparently forgetting that the Brothers Tsarnaev entered the U.S. legally, with the older having become a permanent resident and the younger a citizen, Buchanan slammed undocumented immigrants who aspire to become Americans:

Why do you have to do anything? What is this nonsense that ‘they’re in the shadows’? With due respect, they ought to be in the shadows! They’ve broken the law to get into the country…. Do nothing!… You [the Republican party] don’t have [to] bribe, you don’t have to give up your principled positions… in order to get Barack Obama to do his duty and defend the border!

Fortunately, CIR proponents on the right and left in Congress and elsewhere gave forth with rapid responses:

Republican point man on immigration in the House, Rep. Mario Diaz-Balart disagreed with Sen. Grassley: "[E]very crime that is committed right now is under the current immigration system. So what does that lead me to believe? We need to fix the current immigration system, if in fact there is any connection between immigration at all."

A spokesman for Sen. Marco Rubio (R. FL) issued this statement: “There are legitimate policy questions to ask and answer about what role our immigration system played, if any, in what happened . . . Regardless of the circumstances in Boston, immigration reform that strengthens our borders and gives us a better accounting of who is in our country and why will improve our national security. Americans will reject any attempt to tie the losers responsible for the attacks in Boston with the millions of law-abiding immigrants currently living in the US and those hoping to immigrate here in the future.”

Republican Senators John McCain and Lindsey Graham released a joint statement: “Some have already suggested that the circumstances of this terrible tragedy are justification for delaying or stopping entirely the effort. . . In fact, the opposite is true: Immigration reform will strengthen our nation’s security by helping us identify exactly who has entered our country and who has left.”

Democrats, Chuck Schumer and Dick Durbin, also rejected the flawed reasoning which would link CIR to the bombings. Sen. Schumer warned against the temptation to "“jump to conclusions” and “conflate” the Boston tragedy with immigration reform. Sen. Durbin noted that CIR would enhance our security: "[E]veryone, the 11 million people who were basically living in the shadows in America, [has] to come forward, register with the government, go through a criminal background check. That will make us safer.” I made the same point when the Christmas-time underwear bomber succeeded in nothing more than scorching his private parts. See "Using Immigration to Stem the Terror Threat," (Dec. 30, 2009).

The New York Times Editorial Board observed that CIR's opponents are desperate and that CIR would make finding wrongdoers easier: "Until the bombing came along, the antis were running out of arguments. They cannot rail against 'illegals,' since the bill is all about making things legal and upright, with registration, fines and fees. They cannot argue seriously that reform is bad for business: turning a shadow population of anonymous, underpaid laborers into on-the-books employees and taxpayers, with papers and workplace protections, will only help the economy grow. About all they have left is scary aliens. . . .There is a better way to be safer: pass an immigration bill. If terrorists, drug traffickers and gangbangers are sharp needles in the immigrant haystack, then shrink the haystack. Get 11 million people on the books. Find out who they are."

Matthew Iglesias of Slate suggested seemingly counterintuitive but spot-on points that doing nothing will only encourage illegal immigration and let more terrorists and killers in and that the proposed 20,000-to-200,000 W visas for lesser-skilled workers likewise may be insufficient to stem illegal border crossings -- the precise point I made on April 18 to Abigail Rubenstein of Law360 Employment ("[That] the U.S. Chamber and the AFL-CIO reached a consensus on a lesser-skilled worker visa is wonderful, but the numbers make the program illusory").

The General Counsel of the American Immigration Lawyers Association, David Leopold, persuasively explained, in essence, that immigration adjudicators are not soothsayers and that no one can foresee how an immigrant's life will turn, as reported in The Atlantic: "At the time that the Tsarnaevs applied for asylum, Tamerlan and Dzhokhar were very young. There was almost certainly nothing in their background that would have raised any red flags; apparently, there was nothing in the father's either. Here, Leopold made a key point: 'You can't predict future behavior.' For any democratic country that wants to participate in international society, Leopold pointed out, you have to assume some level of risk. Despite that, 'the systems they have in place,' meaning those security screenings, are 'doing the job.'"

Despite CIR proponents' quick retorts, the Boston bombings will likely make enactment all the more difficult. Unlike an esteemed colleague who predicts a less than 50% chance, I'm still optimistic that CIR will be enacted. If anything, Boston made the price of doing nothing simply too high. Still, with background checks on gun sales a non-starter in the Senate despite 90% support among the American people, nothing can be taken for granted. Here's what CIR's proponents must do now:

Urge the Senate to adjust the balance of funding in the Senate proposal, the "Border Security, Economic Opportunity, and Immigration Modernization Act’’ (or, "BESSIE MAE," as a prominent immigration editor has dubbed it) between border security (proposed at an overly generous and likely somewhat wasteful $6.5 billion) and the measly, wholly inadequate amount ($10 million) authorized for the integration of immigrants into American society. Whenever a refugee or any other immigrant comes to America, we want to provide the environment to prosper like Google founder Sergey Brin, a refugee from the Soviet Union, and not turn sociopathic as apparently happened with bombing suspect Dzhokhar Tsarnaev. Meantime, until CIR is passed, kudos to U.S. Citizenship and Immigration Services for its recently announced Citizenship and Integration Grant Program, which will offer almost $10 million in funding during the grant period.

Remind Republicans that the November 2012 election was a watershed. Republicans will continue to be the party of old white men, unless they take the politically smart and courageous act to pass CIR. Doing nothing is not an option if the GOP is to survive.

Humanize the immigration debate. Point out that among those killed in the bombings was Lu Lingzi, an only child and Boston University graduate student majoring in Mathematics and Statistics -- precisely the type of STEM student we want here -- whose death her father described as like a "dagger in our hearts."

Point to history. We didn't stop immigration after the Puritans (themselves religious refugees) conducted their deadly Salem Witch Trials. Indeed, had America closed the door to English refugees, there'd be far fewer Anglos who oppose CIR.

Make the point that Bostonians and the police got it right. Show that the post-bombing resilient spirit of Boston, and the close collaboration of federal and state law enforcement personnel (who cooperated superbly in speedily identifying and neutralizing the suspects), demonstrate that we've grown up as a country and a government since 9/11. No virulent backlash against foreigners has sprung up since Monday's bombing, save for the vicious hate spewing from a few, notably, Fox News contributor Erik Rush, who tweeted "Let's kill all of them (Muslims)" and then backed down quickly after he was confronted, claiming that he was merely engaging in sarcasm. Here, unlike 9/11 there was no inter-agency withholding of information and no governmental failure to connect the dots. Indeed, the immigration system, insofar as it was involved, worked, given that USCIS held off on the naturalization application of Tamerlan Tsarnaev based on information derived from a prior FBI investigation of Tamerlan.

Make sure that CIR clearly puts the burden on the immigration agencies to publish implementing regulations on strict deadlines or face a loss of funding, and that Congress conducts regular public oversight hearings after enactment during the implementation phase. If the events of last week proved anything -- no, not the bombing, but rather the Texas fertilizer plant explosion that killed at least 14 people -- it is that government agencies must be held accountable and be funded properly (see my first bullet above about rational allocation of immigration budgets). User fee funding as the primary financial source for CIR implementation, which the G8s' proposal envisions, simply won't do.